THE SOTOMAYOR CONFIRMATION : SHOULD WE EXPECT OUR JUDGES TO BE COWARDS?

AN ESSAY

I have little doubt that the Senate will confirm Judge Sonia Sotomayor as our next Supreme Court justice. I make this judgment on purely political grounds. After all, the power to confirm “Judges of the supreme court” lies with the Senate (see U.S. Const., Art. II § 2, cl. 2). And if history is any guide, it shows that the Senate party in power wins the confirmation fights. When the Republicans controlled the Senate, they easily overcame Democratic resistance to appoint fellow Republicans Chief Justice John G. Roberts (78-22) and Justice Samuel A. Alito (58-42). Now, the Democrats control the Senate by a healthy majority. They will similarly endorse their fellow Democrat, Judge Sotomayor. This has little to do with legal ability, conscience, honor or principle. It is all about politics. If you have more votes than the opposition, you win. If you don’t, you lose. If Plato were nominated to the Supreme Court by a Democratic President and the Republicans controlled the Senate, he would not be confirmed.

But of course the Republican minority will carp in this case, just as the Democrats carped when the Republicans controlled the Senate. It will not affect anything. It will just fill the air with bitterness and resentment; this is Washington and we should expect nothing less. Still, I always find it interesting when politicians bluster in vain because it gives me an insight into their values. Despite Judge Sotomayor’s obvious “Supreme Court pedigree” (i.e., she went to a top-tier law school; she got good grades; she clerked for the right federal judge; she served as a lower court judge; she curried enough political favor; she never went to prison or owed excessive debt), Republicans nonetheless will find issues to whine about. It is as predictable as the rain.

In a New York Times article today (Sotomayor’s Sharp Tongue Raises Issues of Temperament, May 29, 2009), I read that the Republicans find fault with Judge Sotomayor’s “sharp tongue.” According to several lawyers who practice before her on the Second Circuit Court of Appeals in New York, Judge Sotomayor is “occasionally combative,” “difficult” and “nasty” when she hears an argument she does not like. Some even said she is a “terror on the bench” who “behaves in an out-of-control manner.” This, in sum, has led Republican critics to oppose her “judicial temperament” rather than her intellectual qualifications. In other words, she may be smart, but she is not sufficiently polite to be a Supreme Court justice.

I actually like the fact that Judge Sotomayor volunteers her own opinions from the bench, especially when she criticizes a preposterous argument. I turned my back on the law because it is too technical. I reject its formalism, its inequalities and its vapid, hypocritical rhetoric. I reject it because it grandly claims to serve justice, when it generally only serves power. I reject it because it espouses principle, yet denies it to anyone who does not worship “procedure.” I reject it because it advances order over right, even when right is apparent. I generally despise judges because they buy fully into these hypocrisies to support a fundamentally unfair system. But sometimes judges surprise me. When they actually voice respect for justice and right, they redeem themselves. I even appreciate them when they dare to speak their minds about legal issues rather than merely reference arcane procedural rules to avoid the obvious, burning question. See, e.g., F.C.C. v. Fox Television Stations, Inc., Supreme Court Docket No. 07-582 (decided April 28, 2009). Judge Sotomayor does this more often than the Republicans like. This makes her an “activist” and “out of control.” As soon as a judge starts talking about justice, in other words, she has a “problem with temperament.”

What caused the Republicans to question Judge Sotomayor’s “manner on the bench?” They point particularly to her conduct in a recent appellate court oral argument in a case called Arar v. Ashcroft (see video at http://video.google.com/videoplay?docid=1706247655617377220). This is a high-profile case about the Executive’s alleged power to “render” foreign citizens to third-party countries to be tortured for “counterterrorism information.” Mr. Arar is a Canadian citizen who claims he was seized in the United States when transferring to a flight to Canada at an American airport. Arar said there had been a terrible mistake. The agents saw things differently. After a short detention, American agents allegedly sent him to Syria in order to circumvent America’s ban on torture. There, Syrian agents imprisoned him for almost a year and subjected him to various bodily indignities. Finally, they determined he was not a terrorist and sent him back to Canada. Now he sues the American agents who handed him over to Syria, claiming they knew full well he would be tortured there. In response, the United States government denied responsibility and asserted that American courts had no jurisdiction to hear the case because “federal agents” are not liable for “constitutional torts” when “national security and foreign policy” are at issue.

During oral arguments in Arar, Judge Sotomayor questioned the government’s lawyer. She cut him off twice in order to confirm her understanding about the government’s position in the case. She wanted to know whether the United States government truly asserted that American agents face no liability for sending people to be tortured abroad as long as they doctor up some “national security explanation.” This angered Judge Sotomayor for good reason. In essence, the government contended that it was “OK” to render people to countries that allow torture because the Executive has unquestionable “power in foreign relations matters.” Judge Sotomayor did not like that contention. She made her feelings clear that it was an awkward argument to make, especially in a country that professes respect for individual rights and liberties. She did not like the argument that the Executive can “do whatever it wants” simply because it says “national security is at stake.” She thought those sentiments did not sit well with the principles that animate our constitutional system. And because she made her feelings clear, Republicans now call her “sharp-tongued,” “out-of-control” and “nasty.”

Judge Sotomayor won my respect by confronting the government’s lawyer in this case. She was not even disrespectful or “nasty” when making her points. She may have interrupted the lawyer, but she did not insult or humiliate him. That is normal business in American appellate courts. Judges always showcase themselves over the lawyers. The lawyer’s cursory statements simply provide fodder for the judges’ own rhetoric. Judge Sotomayor did the same thing that many Republican judges do every day. But here, she actually took a strong position on an issue that should concern us all: Torture. If a judge does not get passionate about claims that her own government endorses torture, what will spark her interest? Securities fraud? Accounting irregularities? Property disputes? If anything at all arouses a judge’s sense of right and wrong, it should be torture. The United States claims to be a progressive, civilized country that respects rights and laws. Yet torture represents an earlier, not-so-civilized age in which raw, ugly power ruled over principle and reason. America publicly condemns countries that practice torture today. Against this background, if a judge does not fundamentally recoil when confronting allegations that the American government endorses torture, she should be ashamed to call herself a jurist.

This reveals the absurdity in the Republican position. Did they expect Judge Sotomayor to sit inertly by while the government’s attorney tried to justify torture with disingenuous procedural arguments? If they did, what does that say about their values? That torture is “OK” as long as a Republican administration orchestrates it? That “procedure” should win out over “justice?” They would have preferred that Judge Sotomayor said nothing and merely allowed the government’s lawyer to spin his guilty logic. You can even see in the video that the government’s lawyer is uneasy, not just because he is on the hot seat, but because he knows that it is wrong to defend torture. His face contorts. He bites his lip. His eyes dart nervously through the courtroom. When judges confront him about his substantive position, he tiptoes around the real issue and starts talking about procedures and precedents. He cannot bring himself to admit that torture is wrong, yet his demeanor admits it for him. Thus, the contrast between his behavior and his words make him a glaring hypocrite. Only his mechanical legal training prevents him from breaking down altogether. To her credit, Judge Sotomayor showed that she could forgo logic when confronted with fundamental wrong.

She did not sit quietly through this nonsense. No person with a basic sense of justice could have. Yet the Republicans seem to think that speaking out about fundamental injustice makes a judge “out of control.” As soon as a judge departs from vacuous questions about procedure, jurisdiction and statutory authority, she reveals a “poor judicial temperament.” In short, it seems to me that the Republicans want cowardice in a judge. A cowardly judge would allow the Executive to get away with anything. A cowardly judge would resolve a torture case on procedural grounds rather than grapple with fundamental questions of justice. A cowardly judge puts full faith in the “law,” even when the law clearly will not do “right.” A cowardly judge sits by and lets others do the real work later. A daring judge, on the other hand, can at least acknowledge wrong when she sees it and set the country on the right rhetorical path to correct it. I think Judge Sotomayor showed some daring in her exchange with the government’s lawyer in the Arar case.

But in the end, it really comes down to politics. A liberal “daring judge” is a “coward” to conservative eyes, while a conservative “daring judge” is a “coward” to liberal eyes. Here, Judge Sotomayor spoke out about an issue that largely appeals to liberals: The ignominy of torture. Because she spoke out on that issue, liberals label her “daring,” while conservatives call her “out of control.” But if a judge passionately spoke out about an issue dear to conservative hearts, such as “national security,” conservatives would call him “daring,” while liberals would label him “a coward” or “out of control.” Sadly, we see that principle plays nary a role in these judgments. It is simply about who says what, and whether the issue appeals to conservatives or liberals.

Must our judges be cowards? If we adopt conservative rhetoric, judges must be cowards when addressing questions concerning individual rights, dignity and justice. If we adopt liberal rhetoric, judges must be “out-of-control” when addressing questions concerning procedure, unfair power relationships and judicial restraint. If I had to choose, I would prefer a judge to be daring about liberty, dignity, individual rights and justice. Despite all my cynicism and suspicion, I still believe that the Constitution stands for good. I believe that it stands for evolving liberty and gradual improvement in society through advancing principle. I would prefer a judge be passionate about those ideas rather than cowardly and technical. Unfortunately, modern “judicial thought” counsels strongly against “expansive judging” and “unnecessary explications of principle” in court opinions. But why even bother having a Constitution if we do not have daring judges to expand upon the liberties enshrined in it? How do we advance as a society when our own constitutional arbiters take a narrow view on liberty? Should we not expect our jurists to advocate for us, “We the People,” the ones who created the Constitution in the first place? The ones who delegated its authority after the Revolution? If Congress and the President fail us—as I think they did on the torture question in the Bush years—who will speak for us?

I think we should expect our jurists to advocate for us. Judge Sotomayor showed that she at least cares about how our government acts with respect to our rights as citizens in a constitutional system. She recoiled from the suggestion that the Executive can “do whatever it wants” whenever it conjures up a shadowy “national security reason.” In essence, she showed that individuals matter more than the government. That is certainly an advance over Roberts and Alito, who could care less whether government swallows up individuals, or whether innocent people die at the hands of the State. In other words, Judge Sotomayor’s conduct at the Arar argument shows that she cares at least something for justice. In my view, that is an auspicious qualification for serving on the Supreme Court. And among at least four of its current members, it is a qualification sorely lacking.

Having said all this, I am glad I am not a judge. I like thinking for myself, not attempting to shoehorn my beliefs into precedent and prior judgment. Judicial work lends itself to obedience and cowardice far more than it does to daring. After all, judges work with others’ words, not their own. It is hard to be creative when someone else tells you how to paint. I echo Nietzsche on this score. Judicial work is like “dancing in chains.” Menschliches, allzu Menschliches Teil II, Der Wanderer und Sein Schatten Aph. 140 (“For what we call ‘Invention’ [in art] (metric rhyming, for example) is always just another chain that we lay upon ourselves”). Judges constantly imprison themselves in others’ logic and arguments. It is what they do. Yet when some passion escapes the chains, we should embrace it with full hearts.

JUSTICE SCALIA TO PRESIDENT OBAMA : KISS MY WHITE ASS

By : Mr. Antonin G. Scalia, Associate Justice, United States Supreme Court, Seat 10 (1986-present)(Appointed by President Ronald Reagan); Law Professor, University of Chicago School of Law (1977-1982); Constitutional Originalist; Republican.

In the usual case, Supreme Court justices do not volunteer their opinions on political matters. See Baker v. Carr, 369 U.S. 186 (1962); Goldwater v. Carter, 444 U.S. 996 (1979). We are, after all, detached and independent legal scholars under our constitutional system. See, e.g., U.S. Const. Art. III, § 1; Federalist No. 78 (Hamilton). We could not perform our neutral interpretive role in if we constantly embroiled ourselves in Washington politics. Our allegiance lies with constitutional principle, not petty political loyalties. We do not squabble for votes or ridicule our political opponents. We render reasonable opinions consistent with the Constitution and laws of the United States. Personally, I do my utmost to remain faithful to the Constitution as our Framers understood it. If the People want to change the Constitution, they are welcome to do so. See, e.g, U.S. Const. Art. V. It is not my role to “invent rights,” “expand liberty” or “make things up” from the text. I just read and recite. I do not create. In virtually every case, I exercise judicial restraint; provided I agree with the law at issue.

But we live in extraordinary times. Never in my life have I witnessed such a stupid President. Contrary to my usual practice, I must speak out about President Obama. This man is going to run America into the ground unless someone stops him. Yes, I know the American People voted to elect him in large numbers. They are entitled to do so under Article II, § 1 and the Twelfth Amendment. Still, when the American People act in an irrational manner by electing a buffoon, I must assert my constitutional authority to protect them from themselves. See Marbury v. Madison, 5 U.S. 137 (Cranch) (1803).

I join my learned colleague John G. Roberts in denouncing President Obama as an idiot. Chief Justice Roberts wrote several months ago that he was “determined to make life difficult” for President Obama by issuing “occasional, irrational conservative judicial opinions” during his Presidency. See text at: http://reasoncommercejustice.blogspot.com/2008/12/word-from-chief-justice-john-g-roberts.html. Chief Justice Roberts referenced our institutional power as Supreme Court justices to resist inane Executive and Legislative measures by striking down laws inconsistent with our views. In a later article, Chief Justice Roberts soundly castigated Obama and the cult that reveres him. http://reasoncommercejustice.blogspot.com/2009/01/message-from-chief-justice.html. In that article, the Chief Justice rightly took offense over the liberal news media’s attempt to paint him a fool for misstating the President’s oath of office during the Inauguration Ceremony on January 20. Chief Justice Roberts spoke well when he said: “Screw you liberal assholes. I’m Chief Justice. You’re just a bunch of European-loving reds.” Id. True to his leadership role, Chief Justice Roberts swore that he would make “constitutional law personal” by opposing any law bearing Obama’s name. He also promised to abandon customarily polite Supreme Court rhetoric when writing opinions by including sentences such as: “Obama has his head up his ass if he thinks he can pass this bill, so help him God.” Id.

I fully agree with the Chief Justice’s sentiments. I fully support both his efforts to issue occasional, irrational conservative judicial opinions during Obama’s tenure, as well as his desire to “make constitutional law” personal by scrapping our usual reserve when writing opinions. Nonetheless, I believe that we must go further as an institution because our country has never elected such a dangerous man. I will not just occasionally issue irrational, conservative judicial opinions; I will always issue irrational, conservative judicial opinions. And unlike Chief Justice Roberts, I have no qualms about making constitutional law personal. I have been tongue-lashing my colleagues since I came on the bench in 1986. I never had a problem calling Justice O’Connor a country gal dingbat with fake hair, nor did I hesitate calling Justice Marshall a wheezy African Che Guevara. Believe me, I know how to call my current colleagues idiots, nincompoops, blundering old sots (Justice Stevens), screechy feminist hags (Justice Ginsburg) and anally overperfumed putzes (Justice Breyer). In fact, last year I opened an Institute celebrating my approach to collegiality: The Justice Antonin Scalia Society for Insulting, Degrading, Denigrating and Humiliating Your Professional Colleagues. See original opening remarks at: http://reasoncommercejustice.blogspot.com/2008/09/supreme-court-minute.html. Basically, when it comes to constitutional law, there is no room to be nice. It’s a war in here. You’re either right or you’re wrong, and I’ll tell you straight out when you’re wrong. I don’t waste my time with this “politeness” bullshit. If you get an argument wrong, I’ll at least publicly call you a butthead—and probably more. I might even call your ancestors stupid, since dumb usually gives birth to dumb. The press loves me. If it weren’t for me, they would only hear gibberish in the Supreme Court building like “estoppel,” “collateral bargaining agreement,” “justiciability,” “prudential grounds” and “oyez.” But when I’m on the bench, they get some entertainment with phrases like: “Moron, please be quiet; you’re giving me a headache;” “You whiny ACLU hell-bitch, would you please shut up?” “Wait a second, so you’re saying there’s a constitutionally-protected liberty to perform semi-public cunnilingus?!?” “I should hold you in contempt for just being an imbecile;” “What part of ‘Stop talking’ did you not understand?” and “My God, are you really that stupid?”

But this is not about entertainment. This is war. President Obama threatens to destroy the constitutional system as we know it. He undermines our free market system by providing government funds to private banks. He brutalizes private contract rights by rescuing homeowners from default and bankruptcy. He promises “change we can believe in” by freeing terrorists and allowing “second chances” to drug dealers, child molesters, rapists, gang thugs and hired killers. He tarnishes America’s influence on the world stage by groveling in Europe and withdrawing our troops from Iraq. He even has appointed left-wing ideologues to run the Justice Department, guaranteeing bothersome, costly investigations into important private business dealings. He even said he would repeal the Defense of Marriage Act (DOMA), compelling States to recognize same-sex marriages under the Full Faith and Credit Clause. See U.S. Const. Art. IV § 1.

This is not progress. This is tyranny. And I have only one thing to say to the “President:” Kiss my white ass.

Did you notice that the President is black? What the hell were the American people thinking? We jail and execute black people; we do not elect them President. Believe me, I know we jail and execute them. I handle the appeals. They are almost all black. Our Framers wrote the Constitution to make sure that black people stayed where they were. Yes, yes, I know we have an “Equal Protection Clause” and a whole bevy of communist laws from the 1960s that try to assure “equal rights” to blacks (Civil Rights Act of 1964, Voting Rights Act of 1965, blah, blah, blah). But come on, that’s all just guilty rhetoric. We never meant to allow a black man to become President. And I can assure you that neither Madison, nor Hamilton, nor Washington, nor Adams, nor even Lincoln ever dreamed that a black man would occupy the Oval Office. For the record, I am not a racist; I am just telling you about our traditions and original intent.

On the other hand, I can understand electing a black Vice President or appointing a black Supreme Court justice. After all, Justice Thomas poses no threat whatsoever to the American people. He just does what I tell him. But my God, the President controls the military. Would you trust Justice Thomas to control our nuclear arsenal? I know I wouldn’t (no offense to Justice Thomas; you’re a great guy and you play ball, but you’re not ready to wage war). And let me tell you, President Obama is not an easy-going black man who keeps his mouth shut like Justice Thomas. He is a firebrand radical who goes to Baptist churches that perform frightening quasi-voodoo rituals. And unlike Justice Thomas, he actually claims to understand constitutional law. Obama is not a pushover; he is a black liberal Muslim revolutionary. But I’m not going to let him destroy our country. He can kiss my white ass.

In times like these, even Supreme Court justices must take sides. In calmer days, it was easier for me to simply apply constitutional principles without political overtones. But today, I have a duty to protect America from Obama. I believe I am uniquely situated to repel Obama’s attacks on American life. Along with Chief Justice Roberts—who shares my commitment to resisting Obama—Justices Thomas, Alito and Kennedy have already expressed a desire to block Democratic initiatives. We no longer have the luxury to abstain from political disputes in Washington. We are the Third Branch. Obama controls the other two. That makes us America’s final defense against socialism and equality. Thankfully, our Framers foresaw times like these. They knew that radicals may one day control both the White House and Congress. And they knew that, in such times, only the Supreme Court could protect lasting principle against frenzied partisan radicalism. We are the antidote against revolutionaries like Obama and Nancy Pelosi. We refuse to allow Obama to reinvent American society. We refuse to allow universal health care, government bailouts, mandatory disability insurance or “free rides” for terrorists, illegal immigrants and killers. We are the last bulwark against humanity and progress. Without us, America will transform into Europe. If we do not fight back now, America will commit itself to decency, compassion and mercy.

I like America the way it is, Mr. Obama. You can kiss my white ass before you transform our country into France, Belgium or Holland. We do not want utopia. We want protected contract rights.

America needs leadership, not reckless reform. Neither the President nor Congress can effectively lead this country. For that reason, the Supreme Court must step in to correct the imbalance. Although I traditionally refrain from political disputes, desperate times demand desperate measures. Unless the Court acts now, there is no telling what damage Obama, Pelosi and deranged Democratic agency heads will do to this country. For that reason, the Court must use every constitutional weapon at its disposal to stop this madness. We must first abolish the Case and Controversy Requirement. See U.S. Const. Art. III, § 2. We do not have time to wait for an actual “ripe controversy” to develop in the lower courts. We must issue theoretical opinions today, not overly pragmatic, technical opinions ten years from now. Contrary to accepted rhetoric, we do have the power to decide political disputes. We have invalidated elections before. See Bush v. Gore, 531 U.S. 98 (2000). To stop Obama, we should follow that precedent. We must declare the election results from 2008 invalid, then name a new President. To support our decision, we must merely note the colossal threat Obama poses to the American order. President Obama has already breached his oath to support the Constitution (see Art. II, § 1, cl. 8) by violating the Contracts Clause (Art. I, §10, cl. 1) and the Due Process Clause (Fifth and Fourteenth Amendments). His bailout plans unfairly distinguish between citizens without justification. We can only expect that President Obama’s plans will continue to ignore the Constitution. We will not tolerate them. He can kiss all of our white asses (including Justice Thomas’, whose ass is—for all concerns and purposes—white).

Time will justify our outrage against President Obama. He has no respect for the Constitution because he is committed to liberty, equality, justice, compassion, mercy, humanity and honor. Our Constitution does guarantee such things; it guarantees only orderly government and healthy interstate commerce. We are Supreme Court justices. We know what the Constitution means. President Obama may have been an uppity Ivy League law professor with “opinions” about the Constitution. Opinions about the Constitution are like assholes; everybody has one. But only we know what the Constitution really means. It means what we say it means, because we know what the Framers meant. And I know for a fact that the Framers did not want a black man in the White House, nor did they want a government that saves people from their own bad decisions. Put simply, President Obama is a traitor to our traditions. He has not supported the Constitution, nor has he defended the values for which it stands. In our system, we imprison terrorists; we do not free them because Europe scolds us. President Obama may think he is “fighting for equality and justice” in America. But we say he is acting illegally.

I cannot sit by in good conscience while President Obama destroys our constitutional order. As a Supreme Court justice, I intend to use every means available to oppose him. He might control Congress and the White House. But he does not yet control this Court. I will lampoon, criticize, castigate, denigrate, insult, demean and denounce him until my dying breath. And I will invalidate any law he signs. I will revile any document bearing his signature. I owe him nothing. I have my job for life, and there is nothing he can do about it. See U.S. Const. Art. III, § 1. Chief Justice Roberts rightly declared that he will boldly oppose Obama at every available opportunity. I will go a step further. No longer will I refrain from political entanglements. It is time to get personal because Obama got personal with America. I hope President Obama is ready to rumble, because if he isn’t, he can kiss my white ass. He can expect no quarter from me—or Justice Thomas.

The era of judicial restraint is over.

DEMOCRATS CANNOT HANDLE HOMELAND SECURITY : ONLY REPUBLICANS KNOW HOW TO KEEP AMERICA SAFE

By : Mr. Mitch McConnell, United States Senator (R-KY); Senate Minority Leader; Obama Opponent; Homeland Security Expert; Member, Agriculture Committee.

THE MINORITY VOICE

President Barack Hussein Obama has led this country for 100 torturous days. During that time, the President has made war on the American people by releasing brutal terrorists from our military base at Guantanamo Bay, Cuba. He has also eased restrictions on immigration, flooding our land with Spanish-speaking beggars, criminals and litterbugs. Backed by a majority in Congress, Mr. Obama has dismantled the wall his predecessor erected to defend this country from terror and miscreants, both foreign and domestic. Worse, he has put an emphasis on “fair process for all” and a “commitment to constitutional liberty” over security for American women and children. He has staffed the Homeland Security Department with liberal lawyers and law professors, some of whom are practicing Arab-loving homosexuals. He has committed to quitting the fight against al-Qaeda in Iraq. In short, Obama is a national disgrace; Democrats do not know anything about Homeland Security. As Republicans, we have a duty to protect America. And to protect America during the Obama era, we must strongly oppose anything he does, says or thinks. It is the only way to protect America’s children from terror attacks.

Our Founding Fathers knew that an elected democratic majority could be just as tyrannical as an unelected King. In the Federalist Papers, James Madison and Alexander Hamilton wrote at length about the dangers inherent in “small majorities.” They knew that a “small majority” could trample on very significant minority interests. For that reason, they provided such measures as the veto override mechanism, the constitutional amendment procedure and the bicameral legislature. They also embodied their commitment to minority rights through parliamentary procedures such as the filibuster, which allows the minority to stop small majorities from voting on key issues. Today, Republicans have a duty to invoke these procedures against Obama and his socialist-terrorist allies. When it comes to national security, Democrats prefer to shake hands with terrorist scum rather than detain, waterboard and kill them. When Republicans see turbans, we shoot; we don’t ask questions. This is the approach we need to defend America. It makes no sense to talk to Arabs; there is no such thing as “friendly relations” with terrorists. George W. Bush understood that.

In 2001, George W. Bush established the Homeland Security Department in order to protect this Nation from all enemies. In the beginning, Mr. Tom Ridge led the bureau. Both Mr. Bush and Mr. Ridge knew that old-fashioned ideas like due process, liberty, privacy, access to counsel, the right to remain silent and fair trials would not defeat terror in the 21st Century. For that reason, the Department suspended civil liberties in order to catch the bad guys. That was the right decision; after 9/11 America enjoyed seven years without terror. We caught many, many bad guys, although national security protocols forbid me from disclosing their names or how many we caught. We foiled many plots, although I cannot say what they were or how many. Despite all the criticism, Mr. Bush proved that his approach to Homeland Security was the right one.

Now the Democrats control the Homeland Security Department. This is the ultimate irony. During Mr. Bush’s term, the Democrats opposed everything the Department did. They said it trampled on civil liberties and increased Executive power. They said it harassed law-abiding citizens and perpetuated ethnic stereotypes. They said the Department did nothing to protect America; rather, they said it simply increased the President’s power to detain citizens without grounding in law. Of course, these Democrats fail to see that the Department did stop terror. The Department did protect America. The Department seized millions of gallons of contraband shampoo at airport security lines. It made tens of millions of Americans and foreigners remove their shoes and flip-flops. It inconvenienced millions of travelers who had no connection whatsoever to al Qaeda. It forced millions of Americans to take off their clothing and submit to searches without probable cause. It even listened in on millions of innocent phone conversations without court authorization, in many cases uncovering other, minor crimes in the process. Those measures doubtlessly foiled a would-be bomber. In any event, they allowed authorities to track down marijuana sellers and petty thieves. Most importantly, they sent a clear message: America takes security seriously. If America is willing to strip-search normal-looking white citizens for no reason, then certainly an Arab would know that he could not move about freely without attracting attention. Homeland Security reduced America’s privacy; and that was a good thing. If it came between safety and privacy, we would take safety every time. The 9/11 plotters conspired in private. Can I be any clearer on my point that privacy is dangerous? Thanks to the Department’s disrespect for both privacy and the Constitution, we lived in a safe society.

Not anymore. Democrats in the Homeland Security Department have already begun easing restrictions established under President Bush. Rather than viewing every American as a potential terrorist, Democrats assume that all Americans are good and peaceful. They no longer eavesdrop on random phone conversations. They allow Americans to travel with hair gel, personal lubricants, shoe polish, water bottles, shampoo and conditioner. They even smile and say: “Welcome to O’Hare International Airport!” to brown people wearing Muslim headdress, veils and Mohammedan robes. Rather than suspecting Arabs, they apologize for them and send them on their way without a boarding pass. They treat everyone with “decency and respect for constitutional liberty.” They say they want to “restore faith in the Constitution” after President Bush’s “abuses.”

This is no way to run a government. A President has one overriding duty: To protect the American people at all costs. President Obama and his Homeland Security Department mock that duty. Now, they view Americans with compassion and respect, not suspicion and rancor. They follow constitutional procedures and the Bill of Rights; they no longer hold terror suspects without cause or counsel. These idiots! We do not protect America by giving everyone liberty. We protect America by imprisoning the bad guys. Although we Republicans believe in the Constitution, we regard it the way it should be regarded: As optional advice. It would be really nice if we could give everyone habeas corpus and obtain warrants before searching them. But we would leave this country open to attack if we did. If we followed the Constitution—as President Obama suggests—our entire government would break down. Worse, terrorists, hoodlums and immigrants would overwhelm our borders, disturbing business and commerce. If torture, indefinite detainment, unlawful searches and eavesdropping protect this country from Muslims, we say: “Give us torture, indefinite detainment, unlawful searches and eavesdropping.” Good citizens have nothing to hide. In the 21st Century, we face many dangers. We believe that liberty is for criminals and terrorists. In that light, we believe that Mr. Obama and his soft-hearted Homeland Security Department are leading us down the path to ruin.

Democrats could not protect their own mothers, let alone the United States of America. They are a bunch of weak-willed, overintellectual cowards who would rather give an insane beggar welfare than tell him to get a job, get moving and get over it. They cannot even protect America from flu-infected pigs in Ohio and New York, let alone from terrorists in Pakistan. Some lesbian in the Homeland Security Department said yesterday: “We must accord proper respect for the dignity of the livestock before rushing to judgment about their health status.” This is Democratic rule for you: They would rather respect a hog’s rights than protect America from disease. Well, we are glad to provide the minority voice about security. When Republicans see a diseased hog, they do not worry about its “health status” or “dignity.” They kill it and bury it faster than you can say: “Don Rumsfeld.” The same goes for terrorists. When we see a terrorist, we do not worry about constitutional liberty or “proper interrogation procedures.” We lock the towelhead up, waterboard him and throw away the key. If some lesbian ACLU lawyer makes a fuss about it, we might let an Army Colonel look into his case. But if not, it’s Game Over for Habib. Democrats say we disparage the principles that define America. We say those principles don’t apply to terrorists. That’s the difference.

We are committed to preserving democracy in America. For that reason, we will resist every Democratic effort to weaken procedures intended to sniff out terrorists, criminals and immigrants. George W. Bush knew that following the Constitution would not protect this Nation in the 21st Century. When Republicans controlled Congress, they certified the President’s belief by eradicating basic liberties in order to bolster security. Now, the Democrats are determined to reverse our work. We will resist to the last man. We would rather die than see every American treated with respect and dignity. We would rather die than follow the Constitution in every case. We will not “cooperate” or “compromise” when it comes to protecting our children from Muslims and liberal university professors. We will not “go along with the program” to increase free speech rights or abolish domestic warrantless wiretaps. No, we are determined to hold the line against liberty, because liberty is dangerous.

In a word, President Obama is playing with fire. He thinks he is defending liberty and principle. He thinks he is restoring America’s honor because he says that President Bush tarnished our image abroad. In fact, he is opening the door to terror attacks, anarchy, discord and moral rot. And who gives a flying fuck what Europe thinks of us? As long as the good people of Kentucky support me, I am happy. I don’t give a shit what the Parisians or Belgians think. Yet Mr. Obama would rather placate some communist in Holland than protect the American people from ruthless Arab suicide bombers. He would rather give the Iraqis wedding cake and free champagne than kill them once and for all. Screw free elections; let’s just kill all of them and be done with it. Who really cares whether some Iraqi goatherder votes for another Iraqi goatherder to represent him in a sham parliament? I certainly don’t. This is the Republican way, and these are the values we intend to serve in Congress as long as the Democratic dictatorship continues: Security over liberty; peace over the Constitution; commerce over dignity; privilege over rights; suspicion and rancor over reconciliation and cooperation. We will not work with the Democrats. To the contrary, we will seek to scuttle every single legislative initiative they put forward.

We look forward to resisting the Democrats. Although we would much rather hold a majority in Congress, it is quite fun to simply sit back and whine about everything the Democrats do. After all, we are not really obligated to do anything. We do not have the votes to pass what we want, so why not have some fun and just frustrate everything the Democrats try to pull? In the process, we can stand up and rail about security and our values. We are the minority voice. We will be heard. And we will never trust a Muslim, no matter how well-dressed, well-educated or well-meaning. He’s just another terrorist, and he can stick our Constitution where the sun shineth not. It wasn’t even written for him, anyway. Despite all this, we worry about this Nation with Democrats running the Homeland Security Department. Before you know it, they will be inviting Osama bin Laden and his children to Chuck E. Cheese® for pizza, beer and a kumbaya singing session with Nancy Pelosi.

This is Homeland Security in the Age of Obama. We want no part of it. Nonetheless, we still have a Second Amendment. If the Homeland Security Department cannot protect our children, then we will do it ourselves with our own rifles, pistols and shotguns. In America, we know how to defend hearth and home. And we will.

BREAKING CONTRACTS : IT'S ALL ABOUT POWER

AN ESSAY

After the AIG scandal broke last week, I wrote an essay explaining that there is no legal barrier to breaking contracts. Recently, Americans have been horrified to see federal bailout money paying AIG executives whose conduct helped create the economic crisis. This popular outrage, in turn, sparked a debate as to whether the government can abrogate private contracts. Most Americans seem to think that private contracts are inviolable. They seem to think that contracts have a mystical power that makes them immune from State interference. President Obama’s economic adviser, Larry Summers, went so far as to say: “This is a country of laws. The government cannot just abrogate private contracts.”

Yes it can. Government enforces contracts by sovereign grace. If the sovereign decides that a particular contract will be enforced, there is nothing the aggrieved party can do about it within the law. Of course, this would not set a good precedent. After all, people only do business with each other if they know that the law will force the other guy to honor his promise. But this is a policy concern, not a legal one. In essence, the power to enforce contracts stems from pure political might. It has nothing to do with abstractions, principles or sacred vows. And it certainly has nothing to do with whether the United States is a “country of laws.”

In The Prince, Niccolo Machiavelli wrote: “The principal foundations of all states, whether new, old, or mixed, are good laws and good arms… [and]… there cannot be good laws where there are not good arms…[and] where there are good arms, there are bound to be good laws.” The Prince, Chapter 12 at p. 52. Machiavelli’s clear prose reminds us that a “nation of laws” cannot exist without “good arms,” namely, powerful executive authority. Law cannot exist without force, nor can it even come into being without an original coup. In the United States, there would be no Constitution or laws had the colonists not risen up and defeated the British army through “good arms.” Through “good arms,” the United States maintained the essential stability it required to establish “good laws.” Thanks to protection under “good arms,” commercial men could depend on stable laws. They could count on courts to enforce contracts against those who broke their promises. Americans grew accustomed to a “legal State” in which they could dependably rely on courts to enforce private bargains with neutral, reasonable laws.

That remains the case today. Larry Summers did not voice an insane sentiment when he said: “This is a Nation of laws.” Most Americans agree with him. They take pride in the fact that they live in a society in which courts neutrally apply legal principles that technically treat everyone equally. After all, a “Nation of laws” differs from a “Nation of men,” in which a legal rules flow from the wanton caprice of a single individual. In America, we have laws. In theory, the laws apply equally to everyone, and—as the logic goes—that is a good thing.

But these “defenders of the law” forget that their laws would mean nothing without executive power. Courts enjoy power because they can count on the executive to enforce their “principled” decrees. In contract law, they ruminate about abstract ideas like bargain, consideration, benefit, detriment, equality of exchange, restitution, rescission, reformation, mistake, parol evidence and reliance. They even attempt to allot money damages to aggrieved parties according to fixed, “neutral” rules. They then scribble out judgments and force the offending party to pay. If he does not, the court has no institutional power to do anything but write strongly-worded opinions. To enforce its decrees, it must turn to its institutional partner: The Executive. Only the executive has the billy clubs, guns, prisons and handcuffs to browbeat the offending party into paying up. If he does not obey the court, the executive takes away his property or his liberty. To avoid that fate, the offending party does what the court tells him. That is true power: The power to compel. Cf. Kant (“Law is linked to the authority to compel”). Introduction to Legal Doctrine, The Metaphysics of Morals (Einleitung in die Rechtslehre § D, Die Metaphysik der Moral). The executive is powerful because it can directly inflict pain on bodies and take away property. And as Machiavelli knew, nothing compels men more than threatening their property: “[B]ut above all, [a Prince] must abstain from taking the property of others, for men sooner forget the death of their father than the loss of their patrimony.” The Prince, Chapter 17, p. 72.

What good is it to be a “nation of laws” if the laws themselves are stupid or degrading? That was the question Americans asked when they found out that federal bailout money paid multimillion-dollar bonuses to scallywag AIG executives last week. In my view, waving your hands in the air and pontificating about “our Nation of laws” is absurd. Quite simply, the whole rhetoric about the United States as a “nation of laws” is a vacuous talisman. If it is necessary to allow brigands to take money that would not have been available without their skullduggery because that is what “the law dictates,” then I say the “rule of law” is just as stupid as the law itself. During his confirmation hearings in the United States Senate, Chief Justice John G. Roberts repeatedly pledged that he would issue opinions: “Consistent with the Constitution and the rule of law in the United States,” as if the “rule of law” were synonymous with goodness. What is all this nonsense about the “rule of law?” Laws come from men. Men can be stupid. So can their laws. Therefore, to use a lawyer’s logic, the “rule of law” can be stupid, too. I reserve no exalted place in my heart for the “rule of law.” There once were laws that permitted slavery. Under the “rule of law,” men could own other men in this country. If a law is bad, so is “rule under the law.” For that reason, I reject this hypnotic, reflexive insistence on the “rule of law” in every single situation in which legal rules come into question. For me, it is no answer to mouth the words “rule of law” when defending legal principles that lead to intuitive mischief.

Yet there is no need to even reach the question. We need only worry about the “rule of law” if we assume that the executive will enforce legal decrees. In essence, law is about power. Our constitutional system arose from power and does its best to diffuse power across several institutions. In theory, our legislative, executive and judicial branches are supposed to be “equal” in power. In practice, however, we see how artificial and wooden this distinction truly is. After all, who really has power? Only the branch with the power to compel men’s bodies and take their property has real power. Courts have the power to write erudite opinions on archaic constitutional provisions. Legislatures have the power to draft voluminous bills that attempt to better society with new rules and regulations. But only the executive has the power to shoot, kill, take, invade, imprison, threaten and enforce. Without the executive, neither legislative nor judicial “power” would mean anything. Courts and legislatures are like powerless children who depend on their father to do the muscle work. Only the executive has real power, because it is the branch with the “good arms.” And, in Machiavelli’s parlance: “There are no good laws without good arms.” The Prince, Chapter 12, p. 52. Only real power assures that the law has any force at all. On this point, Machiavelli again puts it best: “For, between an armed man and an unarmed one there is no comparison whatsoever, and it is not reasonable that one who is armed should willingly obey one who is unarmed.” The Prince, Chapter 14, p. 63. In this light, should the executive in this country really listen to carping about the “rule of law” in enforcing abhorrent private contracts for AIG executives? No. In Machiavelli’s terms, it would not even be “reasonable” for the “armed” executive to obey an “unarmed” court.

My sentiments here will undoubtedly cause discomfort among legal “process lovers.” Indeed, my article last week prompted a response that: “This is no way to run a government.” On this point I agree. Laws should be followed. Laws provide stability and comfort to commerce, and that inures to everyone’s benefit. When men know that they can obtain a peaceful remedy from a court, they will refrain from private retribution and “collection.” In almost every case, the executive should enforce legal decrees that compel private obligations. But that does not alter the fact that executive enforcement is essentially discretionary. Only the executive is armed; the court has no real power to compel anything. In rare cases—as here with the AIG bonus fiasco—the executive has the institutional discretion to refuse to honor legal decrees. After all, if private contract law leads to a result so repugnant that it reaffirms Charles Dickens’ famous dictum from Oliver Twist: “If this be the eye of the law, sir, then the law is an ass,” then the executive can step in to reverse the outcry. True, some may say that such “indulgences” to popular sentiment are the first step on the road to dictatorship and capricious government. But I say that it is worse to allow perverse “legal” results than to suspend the law in an exceptional case to avoid public indignation.

I have little patience for those who fanatically put their faith in law. Positive law—meaning written laws passed by popular majorities for majority purposes, ostensibly according to logic and human reason—does not invariably lead to good results or justice. In Hitler’s Germany, for instance, positive law—passed by democratic majorities—forbade marriages between Jews and Gentiles. Later German laws made it “legal” to exterminate Jews at concentration camps. This is an extreme example, but it shows that positive law should not be a talisman. Positive law can be bad. For that reason, trust in the “rule of law” can also be misplaced.

We all want our bargains protected. But that does not mean we should allow AIG Executives to scream “rule of law” to create a result at fundamental odds with our common sensibilities. Our common sensibilities may not be written down in a statute or casebook, but they still matter. On this point, we can turn to the executive to exercise its inherent power to deny enforcement.